§ 16-36-7-34 — Presumptions applicable to advance directives

An advance directive must be interpreted to
carry out the known or demonstrable intent of the declarant. The
following presumptions apply to an advance directive unless the terms
of the advance directive explicitly prevent a presumption from
applying:
(1) If the advance directive does not state a delayed effective date
or a future triggering event for effectiveness, the advance
directive is effective immediately upon signing and witnessing or
acknowledgment in compliance with section 28 of this chapter.
However, if the declarant has capacity to consent to health care,
the declarant has the right to make health care decisions, give
consent, or provide instructions that supersede or overturn any
decision that is made or could be made by the declarant's health
care representative.
(2) If the advance directive does not explicitly state an expiration
date or a triggering event for termination, the advance directive
and the authority of each designated health care representative
continues until the death of the declarant or until an earlier valid
revocation of the advance directive.
(3) If an advance directive designates two (2) or more health care
representatives and does not specify that:
(A) the health care representative's respective authority to act
is subject to an order of priority; or
(B) the health care representatives must act jointly or on a
majority vote basis;
each health care representative has concurrent authority to act
individually and independently to make health care decisions for
the declarant. If two (2) or more health care representatives who
are required to act jointly disagree about a health care decision, or
if two (2) or more health care representatives who are authorized
to act independently give conflicting instructions to a health care
provider, the health care provider may decline to comply with the
conflicting instructions, and in an urgent or emergency situation,
the health care provider may provide treatment consistent with the
instructions of one (1) physician or one (1) advanced practice
registered nurse who examines or evaluates the declarant.
(4) If:
(A) an individual signs more than one (1) advance directive at
different times; and
(B) the later signed advance directive does not explicitly state
that one (1) or more of the previous advance directives by the
declarant remain in effect;
each previous advance directive is superseded and revoked by the
last signed advance directive.
(5) Unless the advance directive explicitly provides otherwise,
each health care representative who is designated in an advance
directive continues to have authority after the death of the
declarant to do the following:
(A) Make anatomical gifts on the declarant's behalf, subject to
any previous written direction by the declarant.
(B) Request or authorize an autopsy.
(C) Make plans for the disposition of the declarant's body,
including executing a funeral planning declaration on behalf of
the declarant under IC 29-2-19.
(6) Each health care representative who is designated in an
advance directive and who has current authority to act is a
personal representative of the declarant for purposes of 45 CFR
Parts 160 through 164.
(7) If an advance directive explicitly provides that the authority of
one (1) or more health care representatives is to be effective upon
the future incapacity, disability, or incompetence of the declarant
but if the advance directive does not specify a method or
procedure for determining the incapacity, disability, or
incompetence of the declarant:
(A) the health care representative's authority to act becomes
effective upon a determination that the declarant is
incapacitated that is stated in a writing or other record by a
physician, licensed psychologist, or judge; and
(B) each health care representative who is designated in the
advance directive is authorized to act as the declarant's personal
representative under 45 CFR 164.502(g) to obtain access to the
declarant's information, and to communicate with the
declarant's health care providers, for the purpose of gathering
information necessary for determinations under this
subdivision.
(8) Each health care representative who is designated in an
advance directive and who has current authority to make health
care decisions for the declarant has authority to consent to mental
health treatment for the declarant.
(9) If the advance directive is silent on the issue of compensation
for a health care representative designated in the advance
directive, then each health care representative is entitled to
receive the following:
(A) Reasonable compensation from the declarant's property for
services or acts actually performed by the health care
representative and for the declarant.
(B) Reasonable reimbursement from the declarant's property for
out-of-pocket expenses actually incurred and paid by the health
care representative from the health care representative's own
funds in the course of performing services or acts for the
declarant under the advance directive.
Any health care representative may waive part or all of the
compensation or expense reimbursements that the health care
representative would be entitled to receive under the terms of the
advance directive or under this subdivision.
(10) If an advance directive explicitly provides that the authority
of a health care representative is effective only at times when the
declarant is incapacitated or unable to consent to health care, then
unless the advance directive explicitly states another procedure:
(A) the health care representative's authority becomes effective
when a determination of the declarant's incapacity is noted in
the declarant's medical records under section 35(d) of this
chapter; and
(B) the health care representative's authority becomes inactive
when the declarant regains capacity.
(11) If the authority of a health care representative under the
advance directive is effective immediately upon signing by the
declarant, the health care representative's authority may be
rescinded or superseded by the direct decisions of the declarant
at all times when the declarant has not been determined to be
incapacitated.
(12) If:
(A) an advance directive designates one (1) or more health care
representatives;
(B) a health care representative is not reasonably available to
act for the declarant; and
(C) the declarant is incapacitated or not competent to make
personal health care decisions;
then subject to any order of priority explicitly stated in the
advance directive, each health care representative designated in
the advance directive must be given the opportunity to exercise
authority for the declarant.
(13) If explicitly allowed or required in the advance directive,
each person who may act as a proxy for the declarant under
sections 42 and 43 of this chapter, if an advance directive had not
existed, has the right to make a written demand for and to receive
from a health care representative a narrative description or other
appropriate accounting of the actions taken and decisions made
by a health care representative under the advance directive.
Notwithstanding any provision in the advance directive, a health
care representative who prepares a narrative description or
accounting in response to a written demand is entitled to
reasonable compensation for the time and effort spent in doing so.
(14) Notwithstanding any provision in the advance directive, if a
declarant is not competent to amend or revoke the declarant's
advance directive, then a person who may act as a proxy for the
declarant under sections 42 and 43 of this chapter has the right to
petition a probate court with jurisdiction over the declarant for
any of the following relief:
(A) An order modifying or terminating the advance directive.
(B) An order removing a health care representative or
terminating the authority of a person who holds delegated
authority under the advance directive, on the grounds that the
health care representative or person is not acting or is declining
to act in the best interests of the declarant.
(C) An order directing a health care representative to make or
carry out a specific health care decision for the declarant.
(D) An order appointing a new or additional health care
representative, on the grounds that all health care
representatives designated in the advance directive are not
reasonably available to act.
Before issuing an order under this subdivision, the court must
hold a hearing after notice to the declarant, to each health care
representative, and any other person whose rights or authority
could be affected by the order, and to any persons who have the
highest priority under sections 42 and 43 of this chapter to serve
as a proxy for the declarant if an advance directive had not
existed. An order issued under this subdivision must be guided by
the declarant's best interests and the declarant's known or
demonstrable intent.

Legislative History

As added by P.L.50-2021, SEC.63.